dissenting:
We iterate without dilution what we said in our dissent to the *72original opinion in this cause (Dissent, Cause No. 79-32, 37 St.Rep. 627). In its opinion on the petition for rehearing foregoing, the majority has circled the issues raised by our dissent and the petition for rehearing, in so circling, the majority has stirred up as much dust as it did in the original opinion, to the extent that the issues in this case are further obscured.
Originally, this was a relatively simple case: Rierson, a retired highway patrolman, had petitioned the District Court for review of an adverse decision against him by an administrative agency. He had filed his petition for review within 30 days, but instead of serving a copy of that petition upon the administrative agency, he waited 16 months when he amended his petition and served a summons issued upon that petition. The only real issue in this case is whether the provision of section 2-4-702(2)(a), MCA, that a copy of the petition for review “shall be promptly served upon the agency”, serves to prevent the District Court from considering agency excesses of statutory authority in deciding questions of constitutional law and a tort claim against itself. We had suggested some proper answers in our original dissent; unfortunately our powers of discussion seemed insufficient.
It had been a happier circumstance for us if the majority had simply decided that sixteen months to make service failed to constitute “prompt” service, that prompt service was jurisdictional, and that therefore, Rierson was out of court. Instead, the majority careened off on a side trip over the statute of limitations, and we may be some time getting this Court back on the road again on this subject.
The majority buys itself a peck of trouble when it declares in dictum (we hope it will be considered dictum) that the statute of limitations continues to run on separable causes intermingled with the limited cause adjudicable by the administrative agency. That dictum is wrong because limitations should be tolled when the claimant is not neglecting to proceed in some forum on a phase of his claim, and when the other party has full notice while the claimant so proceeds of his additional but intermingled claims. Other*73wise, as in this case, an administrative agency can act in excess of its authority, a ground provided in section 2-4-704, MCA, for which an administrative decision can be set aside, and never be called to account in a court of law because the statute of limitations may have run on the cause which the agency incorrectly assumed jurisdiction to decide.
The majority opinion does not deal with our contentions respecting the judicial review statute for administrative cases, section 2-4-702, MCA, and particularly, it has not looked at that statute with respect to the statute of limitations on “independent” or intermingled causes. Again, the first paragraph of that section provides:
“A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by statute.” Section 2-4-702(l)(a), MCA. (Emphasis added.)
That quoted statute contemplates, in our view, full judicial review not only of causes with which the administrative agency has authority to act upon, but also cases where it violates its constitutional or statutory provisions. Indeed, that is provided, as we have noted, in section 2-4-704(2)(a), MCA.
Our second objection to the majority opinion on rehearing in deciding this case on the statute of limitations is that apparently the court had decided incorrectly which statute applies. This case does not concern an “injury to personal property.” This was not Rierson’s automobile that was damaged; this was, at the least, a liability created by statute governed by section 27-2-21 l(l)(c), MCA (two-year limitation). We would hold that the pension dispute grows out of the relationship of master and servant which is contractual in nature (53 Am.Jur.2d 92 Master and Servant § 14), and that either the five-year or eight-year period applies under section 27-2-202, MCA. Rierson’s tort action however has a two-year limitation, section 27-2-207, MCA, which again points up the *74necessity for tolling the statute while he is pursuing his administrative remedy. Certainly the agency should not be allowed to determine a tort action brought against itself.
We would reverse and remand to the District Court for further proceedings. Whether he would be successful there, we do not know, but at least the courts of justice would be open to him, 1972 Mont.Const., Art. II, § 16, and he would not be deprived of due process.